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There was a time when the ABA’s Ethics Committee seemed to neglect judicial ethics issues. It went twenty-five years without issuing an opinion on judicial ethics. Recent iterations of the Committee, however, have seemed to be more sensitive to judicial ethics issues: all four judicial ethics opinions have been published within the last eight years.

The newest opinion concludes: “A state supreme court judge may sign a letter printed on the judge’s stationery that is duplicated and mailed by the unified state bar association directed to all lawyers licensed in the state encouraging those lawyers to meet their professional responsibility under Rule 6.1 of the Model Rules of Professional Conduct and provide pro bono legal services to persons in need and to contact the bar association for information about volunteer opportunities.” That conclusion is mostly unsurprising in light of new(er) Model Code Rule 3.7(B), which permits judges to “encourage lawyers to provide pro bono publico legal services.” The accompanying comment, moreover, offers non-exhaustive examples of “[s]uch encouragement,” “including providing lists of available programs, training lawyers to do pro bono publico legal work, and participating in events recognizing lawyers who have done pro bono publico work.” The opinion is slightly surprising, however, in its narrowness: the facts are so specific that one might expect to find this opinion in a specific state addressed to a specific judge. That said, given the country’s growing justice gap, this national opinion is for not only a good cause but a pressing cause. The opinion also includes a helpful summary of prior state ethics opinions on this issue:

In addition, the opinion offers judges some guidance as to when “encouragement” could cross the line into unethical “coercion:”

The number of lawyers who will receive the letter. In smaller jurisdictions or in limited-scope mailings that are targeted at lawyers who practice in a particular area of the law, a reasonable person might feel coerced into providing pro bono legal services.

The number of judges serving the jurisdiction. Again, in smaller jurisdictions with a limited number or only one judge, a lawyer who receives a letter from the judge encouraging that lawyer to provide pro bono legal services could feel coerced into doing so.

Whether the letter is a personalized correspondence or a general plea to the bar as a whole. A letter in which the recipient lawyer is identified by name in the salutation runs the risk of a reasonable person finding such a letter coercive.

Whether there will be some kind of post-letter monitoring. A letter in which a judge encourages a lawyer to perform pro bono legal services and then explains that the lawyer’s participation, or lack thereof, will be monitored runs the risk of a reasonable person finding such a letter coercive.

The tone of the letter. A letter in which the justice speaks in aspirational and encouraging language will have a much different impact than a letter that features dictatorial, condescending language.

For the full opinion, click here: ABA Ethics Op. 470 (2015). For professor and former judge Ray McKoski’s commentary on the opinion and Rule 3.7(B), click here. Finally, for the earlier ABA opinions on judicial ethics (addressing a judge’s use of social media, presiding over a case involving the judge’s personal lawyer, and fundraising for problem-solving courts), click here.

Professor Strong (Missouri) just posted an interesting critique of judicial education in the United States. Prof. Strong’s article is part of, and summarizes several other articles from, a great symposium on judicial education held last fall at the University of Missouri School of Law: Judicial Education and the Art of Judging: From Myth to Methodology. Prof. Strong’s abstract follows:

Judges control virtually every aspect ofjudicial education in this country. While such behavior has traditionally been justified as the best if not only means to ensure judicial independence, it is not clear that self-regulation is either necessary or appropriate in matters that affect the public interest so deeply. Indeed, the current state of affairs might reasonably be described as involving a type of regulatory capture.

This Essay takes a novel and provocative view ofjudicial education by analyzing whether the current system promotes permissible values (such as judicial independence) or institutionalizes practices that are harmful to individual judges, the judiciary as an institution and the public at large. In so doing, this Essay considers a number of related issues, including judicial selection procedures, judicial impropriety and the proper role of judges in our society.

Judicial ethics scholar Dmitry Bam (Maine) has authored insightful works on judicial elections, disqualification, and Caperton. He has graciously contributed this post, thoughtfully discussing both the significance and the insignificance of the Supreme Court’s Williams-Yulee opinion:

Imagine you are a plaintiff in a medical malpractice case. You are suing a prominent (and wealthy) local doctor and a local hospital. One of two potential judges will be assigned to hear your case. Both judges received campaign contributions from the doctor and from defense counsel. In addition, a pro-hospital/pro-doctor lobbying group had spent a significant amount of money to support both judges’ campaigns for office. Both judges, in the course of their campaigns, announced that they would “take on trial lawyers” and “the medical malpractice litigation run amok,” and both judges plan to run for office in a few years when their terms end.

But there is one difference between the two judges. In the course of his campaign, Judge #1 wrote and signed a letter to hundreds of lawyers, including defense counsel, personally asking for a contribution to support his campaign. Judge #2 talked to the same defense counsel in the course of her campaign, describing her views and positions on controversial legal issues, but rather than asking anyone for money directly, Judge #2 asked her campaign manager to contact potential contributors. Judge #2 also demanded that the campaign manager tell her immediately who contributes to her campaign and wrote thank you notes to those generous enough to contribute to her campaign.

If your first thought is “Boy, I hope I don’t get stuck with that first guy,” then yesterday’s Supreme Court decision in Williams-Yulee offers an important safeguard of judicial impartiality and its appearance. To the surprise of many experts, the Supreme Court upheld a First Amendment challenge to a Florida canon of judicial ethics prohibiting personal solicitation of campaign funds. The Court held that Florida has a compelling interest in preserving judicial impartiality (and the appearance of judicial impartiality), and the canon prohibiting personal solicitation is narrowly tailored to satisfy that interest. In other words, Florida, and the other 38 states that elect their judges, may have a rule in place prohibiting judges and judicial candidates from personally asking for campaign contributions.

But if, like me, your reaction is “These two judges are indistinguishable, at least when it comes to appearance of bias”, then the Williams-Yulee decision offers little comfort. After all, both judges are potentially biased in favor of the defense; both judges owe a debt of gratitude to the defendant and defense counsel; both judges will need to keep their contributors happy for the next time they run for office. And the difference between how they solicited the money that they received is beside the point.

Now, throughout the opinion, the Court talks the impartiality talk. Justice Roberts’s majority opinion highlights the importance of public perceptions to the judiciary, discusses the fundamental differences between the judicial and other political branches, and provides a strong defense of the need for judicial impartiality. Judges must “apply the law without fear or favor,” repeats Roberts throughout the opinion. Lofty words for a decision that makes so little difference when it comes to any of those things. The rhetoric is almost entirely detached from the minimal (perhaps nonexistent) protection of judicial impartiality created by this decision (or the Florida canon itself).

For example, the Court explains that “in deciding cases, a judge is not to follow the preferences of his supporters, or provide any special consideration to his campaign donors.” But we now know that is precisely what happens. Studies have shown that judges do favor the preferences of the electorate, and judges do give special consideration to their campaign donors. And it all happens whether or not judges solicit campaigns directly. The studies showing that elected judges are biased in favor of the political preferences of the electorate as well as their contributors identify a link between judicial contributions and judicial decisions, not judicial requests for contributions and judicial decisions. The Williams-Yulee decision, despite the majority’s paean to judicial impartiality, is no solution to the monumental problem of judicial bias in elected state courts.

The decision also does little (if anything) for appearance of judicial impartiality, despite the prominent role that appearances play in the Court’s analysis. A large majority of the public perceives judges who receive contributions from litigants and lawyers that appear in front of them to be biased, and will continue to perceive judges who receive such contributions to be biased. As Justice Scalia explains in dissent, “Neither the Court nor the State identifies the slightest evidence that banning requests for contributions will substantially improve public trust in judges.” Of course not, and that’s because while such direct personal requests make life more difficult for a lawyer (who must say “no” to a judge asking for money), it is not the requests that lead 80% of the public to question judicial impartiality. No, it is the contributions/expenditures themselves.

If the holding itself does nothing more than leave states with an impotent tool to fight an overwhelming problem, why am I blogging about it? Is there anything useful to take away from the Court’s decision? Maybe. The most important aspect of the decision, in my opinion, is that the court seems cognizant that standard electoral rules may not apply when it comes to electing our judges. Sure, the Court (or a plurality of the Court, since Justice Ginsburg does not join this part of the opinion) purports to apply strict scrutiny, but Justice Scalia is right that this is not the strict scrutiny of recent First Amendment cases like United States v. Stevens, United States v. Alvarez, Brown v. Entertainment Merchants Association, Snyder v. Phelps, or, most importantly, Republican Party of Minnesota v. White. In other words, Williams-Yulee may be a signal of how the Court will approach regulations of judicial elections that—outside the judicial election context—would run afoul of the First Amendment.

And it is Chief Justice Roberts who holds all the keys. Over a decade ago, in Republican Party of Minnesota v. White, the Court struck down Minnesota’s prohibition on judicial candidates announcing their views on legal issues likely to come before the judges if they win the election. Joining Justice Roberts’s Williams-Yulee opinion are four other justices, all of whom were either in the dissent in White, or would likely have been in dissent had they been on the Court a decade ago (Justices Kagan and Sotomayor replaced White dissenters Justices Stevens and Souter). But it took Chief Justice Roberts to turn a 4-justice dissent in White into a 5-justice majority in Williams-Yulee. Justice Roberts was not on the Court when the White case was decided, so we do not know how he would have voted, but the most important take-away from Williams-Yulee is that Justice Roberts may be more susceptible to regulation of judicial elections than his conservative colleagues on the Court.

Perhaps the court would allow a fund-matching public financing scheme for judicial elections, akin to the one it struck down in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett. Perhaps the Court would permit limits on independent expenditures—the kinds of limits that are thought to be unconstitutional under Buckley v. Valeo and Citizens United. Perhaps it would permit complete bans on contributions to judicial candidates by litigants and lawyers that are likely to appear in front of them? Until yesterday, all of these options seemed to be off the table. Today, they are perhaps a little closer to the table than we thought. Williams-Yulee offers a glimmer of hope that the Court will grant states some flexibility in regulating judicial elections—flexibility that states do not have when it comes to regulating money in legislative/executive elections.

Finally, the Court also seems cognizant that recusal is not the answer to election-related judicial bias. In White, Justice Kennedy’s concurrence explained that to the extent that judicial announcements create concerns about judicial bias, recusal can solve the problem. Similarly, five years ago in Caperton, recusal was once again offered as the solution to the problem of biased judges. But in Williams-Yulee, Justice Roberts acknowledges that recusal alone is not enough. “A rule requiring judges to recuse themselves from every case in which a lawyer or litigant made a campaign contribution would disable many jurisdictions. And a flood of postelection recusal motions could ‘erode public confidence in judicial impartiality’ and thereby exacerbate the very appearance problem the State is trying to solve.”

In short, while I’m skeptical that Williams-Yulee itself makes much of a dent in the problem of biased elected judges, I am hopeful that the decision signals that the Court understands the scope of the problem. And if judicial elections are not going away any time soon (and they are not) and recusal is not the answer (and it is not), then our ability to preserve the rule of law and ensure judicial impartiality may hinge on the flexibility to regulate judicial elections that the Court will grant to states under the First Amendment. We will have to wait and see whether the Court is open to such an approach.

Cindy Gray and the Center for Judicial Ethics have kindly posted a recent edition of the Judicial Conduct Reporter. Click here to view the edition (Winter 2015). It is an informative read, including a summary of the 104 instances of public judicial discipline in 2014, a list of top judicial ethics stories in 2014, and a flyer for the 24th National College on Judicial Conduct and Ethics (which will be held in Chicago on October 28-30, 2015).

When the Florida Bar bans lawyers or judges from personal solicitations, the Supreme Court will, in a five-to-four decision, uphold the ban against the resulting First Amendment challenge. Or so the Florida Bar now reasonably believes, having twice won in this fashion. Twenty years ago, the Bar first won in Florida Bar v. Went For It, Inc. (concluding that the “Florida Bar’s 30-day restriction on targeted direct mail solicitation of accident victims and their relatives withstands [First Amendment] scrutiny”). The second and (for our purposes) much more relevant case is now Williams-Yulee. The Supreme Court of the United States has just upheld Florida’s ban on personal solicitation of judicial campaign contributions. Joined by the Court’s so-called “liberal wing,” Chief Justice Roberts wrote the opinion of the Court blessing the ban. (Florida’s ban on judicial candidates personally soliciting money is based on the 1972 ABA Code of Judicial Conduct, and 29 other states have similar bans based on the 1972, 1990, and 2007 ABA Model Codes; for further background on the Williams-Yulee case, click here and here.) The opinion is partly a plurality opinion because Justice Ginsburg refused to join the part of the opinion concluding that strict (“exacting”) scrutiny applies to this judicial election regulation, which prohibits only a very narrow category of speech (i.e., a judicial candidate’s personal request for campaign money). Thus, the Court effectively lacks a holding on the applicable standard of First Amendment scrutiny. Five members of the Court (including Ginsburg), however, concluded that the canon is one of the “rare” regulations surviving strict scrutiny analysis. The majority opinion will further provide critical support against other challenges to campaign-trail regulations in judicial elections, including the Ninth Circuit’s upcoming en banc decision in Wolfson (which had been stayed pending the opinion in Williams-Yulee). The Ninth Circuit’s now-vacated panel opinion had relied largely on a distinction between (non-judge) judicial candidates and sitting judges — a distinction on which the Williams-Yulee opinion places absolutely no weight.

In Williams-Yulee, the Chief Justice made many fascinating and likely long-lasting distinctions, and three key, interrelated distinctions are highlighted below:

(1) On the nature of judges (vis-a-vis political officials):

Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money. . . . [A] State has compelling interests in regulating judicial elections that extend beyond its interests in regulating political elections, because judges are not politicians.

(2) On the regulation of judicial elections (v. other elections):

The parties devote considerable attention to our cases analyzing campaign finance restrictions in political elections. But a State’s interest in preserving public confidence in the integrity of its judiciary extends beyond its interest in preventing the appearance of corruption in legislative and executive elections. As we explained in White, States may regulate judicial elections differently than they regulate political elections, because the role of judges differs from the role of politicians. . . . Politicians are expected to be appropriately responsive to the preferences of their supporters. Indeed, such “responsiveness is key to the very concept of self-governance through elected officials.” McCutcheon v. Federal Election Comm’n, 572 U. S. ___, ___ (2014) (plurality opinion) (slip op., at 39). The same is not true of judges. In deciding cases, a judge is not to follow the preferences of his supporters, or provide any special consideration to his campaign donors. A judge instead must “observe the utmost fairness,” striving to be“perfectly and completely independent, with nothing to influence or controul him but God and his conscience.” Address of John Marshall, in Proceedings and Debates of the Virginia State Convention of 1829–1830, p. 616 (1830). As in White, therefore, our precedents applying the First Amendment to political elections have little bearing on the issues here.

(3) On judges’ solicitations (v. others’ solicitations):

[In her argument that the canon is fatally underinclusive,] Yulee relies heavily on the provision of Canon 7C(1) that allows solicitation by a candidate’s campaign committee. But Florida, along with most other States, has reasonably concluded that solicitation by the candidate personally creates a categorically different and more severe risk of undermining public confidence than does solicitation by a campaign committee. The identity of the solicitor matters, as anyone who has encountered a Girl Scout selling cookies outside a grocery store can attest. When the judicial candidate himself asks for money, the stakes are higher for all involved. The candidate has personally invested his time and effort in the fundraising appeal; he has placed his name and reputation behind the request. The solicited individual knows that, and also knows that the solicitor might be in a position to single handedly make decisions of great weight: The same person who signed the fundraising letter might one day sign the judgment. This dynamic inevitably creates pressure for the recipient to comply, and it does so in a way that solicitation by a third party does not. Just as inevitably, the personal involvement of the candidate in the solicitation creates the public appearance that the candidate will remember who says yes, and who says no. . . .

The vast majority of elected judges in States that allow personal solicitation serve with fairness and honor. But “[e]ven if judges were able to refrain from favoring donors, the mere possibility that judges’ decisions may be motivated by the desire to repay campaign contributions is likely to undermine the public’s confidence in the judiciary.” White, 536 U. S., at 790 (O’Connor, J., concurring). In the eyes of the public, a judge’s personal solicitation could result (even unknowingly) in “a possible temptation . . . which might lead him not to hold the balance nice, clear and true.” Tumey v. Ohio, 273 U. S. 510, 532 (1927). That risk is especially pronounced because most donors are lawyers and litigants who may appear before the judge they are supporting. See A. Bannon, E. Velasco, L. Casey, & L. Reagan, The New Politics of Judicial Elections: 2011–12, p. 15 (2013).

In 2008, the Judicial Conference of the United States – the administrative policy-making body of the federal judiciary – approved a revised set of rules for handling complaints of misconduct or disability on the part of federal judges. Moving away from the decentralizing approach of the pre-2008 Illustrative Rules, the new rules were made binding on all of the federal judicial circuits.

On September 2, 2014, the Conference’s Committee on Judicial Conduct and Disability (Conduct Committee) issued a set of draft amendments to the Rules. The announcement invited comments on the proposed amendments. This statement was submitted in response to that invitation. The statement is in four parts. Part I provides some background. Part II discusses the policy changes proposed by the Committee. Part III addresses the special problems raised by “high-visibility” complaints. Part IV suggests some additional modest revisions in the Rules and flags issues that warrant the Committee’s attention in the future.

Most of the amendments in the published draft involve clarification or emphasis. But I have identified six revisions that do reflect changes of policy from the 2008 Rules. Five of the six reflect sound policy; they will serve to enhance transparency and strengthen procedural regularity. However, one proposed revision – an amendment that would allow tie votes in the Conduct Committee on petitions for review – is unwise. I urge the Committee to reconsider it.

Part IV addresses a variety of issues raised by the proposed draft and the Rules as originally adopted. These include: the chief judge’s obligation to “identify” a complaint based on public reports suggesting that a judge may have engaged in misconduct; judicial council authority to impose sanctions on complainants who abuse the process; disqualification of judges from proceedings under the 1980 Act; and making the Rules more user-friendly. The most detailed discussion involves two issues raised by the misconduct complaint against former District Judge Richard Cebull of Montana: judicial-council authority to conclude a proceeding and disclosure of judicial-council orders that have been vacated or modified.

(2) The prolific Bruce Green (Fordham) has just published an interesting article addressing whether, on balance, it is better to resist the urge to claim that implicit bias explains a judge’s ruling. His article uses as context Judge Scheindlin’s disqualification in New York’s stop-and-frisk controversy:

One who is convinced that a judge wrongly decided a case may sometimes be tempted to accuse the judge of bias, referring to unconscious social-group stereotypes and/or cognitive biases that fall under the rubric of “implicit biases.” The rhetoric is problematic, however, for various reasons. One is that the term “bias” in this context may be misunderstood to mean something different and unintended – either a disqualifying bias under judicial conduct rules or a conscious prejudice. Another is that, even if the intended meaning is clear, a judge’s implicit biases cannot fairly be inferred from a single wrong decision. To illustrate the problem with accusing judges of bias, given the term’s various meanings, the article focuses on recent federal litigation over NYC police stop-and-frisk policy in which (1) the district judge found “implicit bias” in police practices based on accumulated evidence and expert analysis, (2) the Second Circuit found that the district judge engaged in disqualifying judicial bias because of her comments in a prior related lawsuit and in the media, and (3) critics accused the Second Circuit of bias in making decisions that were hard to justify on either procedural or substantive grounds. The article concludes that, on balance, it is better to resist the temptation to import “implicit bias” rhetoric into critiques of individual judicial decisions.

This week, the Texas State Commission on Judicial Conduct publicly admonished Galveston Judge Michelle Slaughter for posting about the criminal trial then-pending before her. In the so-called “boy in a box case,” Judge Slaughter admonished the jurors not to post on Facebook (or other social media) about the case and then proceeded the next day to post about the status of the case and demonstrative evidence on her own Facebook account. She also posted a link to this news article about the case. (Of note, a member of the public posted the following comment in response to Judge Slaughter’s post: “One of my favorite Clint Eastwood movies is ‘Hang ‘Em High’, jus [sic] sayin [sic] your honor. . . .” Judge Slaughter permitted, perhaps inadvertently, that comment to remain on her Facebook page for several months.) In other posts, Judge Slaughter also commented on an unrelated child pornography case and called a defendant “very challenging.” In light of her posts, a defendant moved to disqualify Judge Slaughter, and another judge granted the motion. This mid-trial disqualification caused a mistrial in the defendant’s case.

The Texas Commission concluded that: “Despite her contention that the information she provided was public information, Judge Slaughter cast reasonable doubt upon her own impartiality and violated her own admonition to jurors by turning to social media to publicly discuss cases pending in her court, giving rise to a legitimate concern that she would not be fair or impartial in the [‘boy in a box’] case or in other high-profile cases. The comments went beyond providing an explanation of the procedures of the court and highlighted evidence that had yet to be introduced at trial.” The full decision, which Judge Slaughter plans to appeal, is available here. For other posts highlighting the need to approach social media cautiously (or to avoid it entirely as to pending cases over which the judge is presiding), see here and here.

With nothing but sadness, I must report that Professor, Dean Emeritus, and now Judicial Ethics Forum Emeritus Monroe Freedman passed away today. In addition to the inherent sadness, anything reported about Monroe — a founder of modern legal ethics — will be an understatement. Fortunately, of the many tributes to Monroe over his storied career, two particularly fitting and detailed tributes have already been published: see Ralph Temple’s 1988 piece here; and a Hofstra Law Review Symposium dedicated to Monroe’s work here (including works from Alan Dershowitz, Steve Gillers, Tom Morgan, Deborah Rhode, Roy Simon, among others). Monroe was an advocate and scholar of firsts, as Hofstra Law School reports (citations omitted):

Freedman was the first legal scholar to argue that the Bar’s restrictions on lawyer advertising violate the First Amendment and to point out that the anti-advertising rules blocked information about lawyers’ services from less educated and less sophisticated people who most need the information. He was also the first to attack restrictions on trial publicity by defendants and defense attorneys, to argue that lawyers should be permitted to reveal information necessary to prevent death or serious bodily harm, to argue that law professors’ sexual relations with students should be recognized as unethical conduct; to argue that the lawyer’s decision to represent a client is a moral decision and subject to the moral scrutiny of others, and to analyze the ethics of coaching witnesses and to discuss the relevance of scholarship in behavioral psychology.

Moreover, many readers will have used Monroe’s canonical scholarly works, which included Lawyers’ Ethics in an Adversary System (1975) and Understanding Lawyers’ Ethics (4th ed. 2010) (with Prof. Abbe Smith). Monroe taught me (and countless other lawyers, professors, and judges) an irreplaceable amount about confidentiality norms, legal advertising, and the due process implications of judicial elections and judicial recusal. (A personal favorite of mine from Monroe’s judicial ethics scholarship is Judicial Impartiality in the Supreme Court — The Troubling Case of Justice Stephen Breyer.) Monroe was so well-known in the field — and for so many notable accomplishments — that listing only a few items admittedly paints a misleadingly understated picture, but to mislead out of the terrible necessity of the occasion:

Monroe became the fifth recipient of the ABA Michael Franck Award, which is the ABA’s highest honor in ethics and professionalism, following Michael Franck himself, Father Drinan, Mark Harrison, and Lewis Van Dusen;

Monroe’s advocacy and scholarship received, in addition to the customary scholarly and popular praise, a call for investigation and disbarment by (among others) Chief Justice Warren Burger of the Supreme Court of the United States;

Monroe advocated, championed, guided, enlightened, and otherwise supported thousands of causes, particularly in capital defense and other criminal law matters (indeed, Alan Dershowitz called on Monroe as Alan’s legal ethics expert in criminal cases); and

Monroe famously articulated the perjury “trilemma” of the criminal defense lawyer: the lawyer is impossibly required “to know everything, to keep it in confidence, and to reveal it to the court.”

As legal ethicists attempt to move forward in Monroe’s absence, a new trilemma will present itself over and over: to acquire Monroe’s integrity and spirit of public service . . . without Monroe.

Before Monroe’s death, the Professional Responsibility Section of AALS had approved of the following program for the January 2016 annual meeting: “Ethics in Criminal Practice — The Three Hardest Questions Today: A Conversation in Honor of Monroe Freedman.” Monroe was very pleased to know about the program. Bruce Green and I are organizing the program and trying to make it a double session. We are now deeply saddened that this will be now be a memorial tribute, but honored to continue the discourse that Monroe started fifty years ago with his seminal work.

Unbelievably, Alabama Chief Justice Roy Moore is still in the news — “unbelievably” because this is the same Chief Justice Moore whose colleagues had to remove from the Alabama Supreme Court for his failure to comply with a direct federal court order to remove his Ten Commandments monument from the public courthouse. As his colleague-justices later concluded, Moore’s actions back in 2001 to 2003 clearly violated the Code of Judicial Conduct, which requires (among other relevant conduct) that judges comply with the law. Moore was nevertheless reelected and has since instructed probate judges not to issue marriage licenses for same-sex marriages. At least two interesting and relevant pieces related to this development follow:

Second, the Arizona Judicial Ethics Advisory Committee just issued Opinion 15-01, which concludes that judges cannot ethically refuse to marry same-sex couples out of religious or other objections. Although judges may refuse to marry all couples or may marry only close family and friends, judges may not refuse to marry same-sex couples and thereby discriminate against them. See Model Code R. 2.3(B). (In a sense, the decision loosely parallels employment law to some extent in that an employer can generally hire or fire an employee for “no reason” but not for a “bad reason.”)

UPDATE: The Arizona Judicial Ethics Advisory Committee revised its opinion last month. The new opinion reaches the same conclusions as above but (1) emphasizes that judges are not required to perform marriages at all (but if they do, they must not discriminate between same- and opposite-sex couples) and (2) deletes the reference to Rule 1.1 (which requires judges to comply with the law). The revised opinion is available here.

Vanderbilt Law Review’s online forum (called En Banc) just published a fascinating list of short essays on the Supreme Court’s upcoming Williams-Yulee opinion (which will address to what extent the First Amendment shields elective judges who solicit campaign contributions personally):

To highlight one particularly interesting essay of the lot, Prof. Ruthann Robson tells her story of being solicited (albeit indirectly) for a contribution, opines on the detrimental impact that Williams-Yulee could have on the interests of clients and lawyers, and discusses four cases, some expected (e.g., White and Caperton) and some unexpected (e.g., Shelley v. Kraemer), that should inform the result in Williams-Yulee. Her work is available here.

Readers undoubtedly know that the Supreme Court of the United States will soon decide whether judges, or at least judicial candidates, may solicit campaign contributions personally (i.e., in lieu of, or in addition to, the customary campaign committee of “responsible persons”). The Court heard oral argument today. It was not a disaster for those in support of limiting the actual and apparent corrupting effects of money (and judges’ direct solicitation of that money from the lawyers and parties likely to appear before them), but perhaps the best possible outcomes would be either a 5-4 decision upholding the Canon or a narrow decision essentially carving out a First-Amendment-driven, mass-mailing-like exception to the Canon. (Williams-Yulee directly solicited money through a mass mailing, which generally does present less harm than in-person, telephonic, or other real-time solicitation.) Interesting reading follows on this case and the oral argument:

(3) The transcript of the oral argument is here. The Justices’ questions generally fall along anticipated ideological divides (e.g., the conservative Justices seem to support uninhibited solicitation of campaign contributions and the liberal Justices seem to support more regulation in judicial elections). Justice Kennedy’s vote is key, and his few questions are not telling. Stay tuned.

Second, for a strong jurisprudential inquiry into impartiality, the relevant differences between civil and common law judges, the nature of adjudication and law, and the justification for positive legal restrictions on judges’ conduct, see W. Bradley Wendel, Impartiality in Judicial Ethics: A Jurisprudential Analysis, 22 Notre Dame J.L. Ethics & Pub. Pol’y 305 (2008).

As J.E.F. nears its seventh year, we just wanted to wish our readers Happy Holidays and an Ethical New Year. Although not of the typical Holiday variety, here are some stories and scholarship for your reading list:

(1) After well-known Pennsylvania Supreme Court Justice Seamus McCaffery was suspended and separately criticized by his colleagues on the high court, and chose to retire as a result, for sending pornographic emails to the state attorney general’s office employees (among others) on his personal email account, a new report from the court’s own special counsel has apparently cleared the other justices of any involvement in the email scandal. The debacle is another good reason to mind the appearance of impropriety in all communications and to treat email messages, even ones sent from personal accounts, as possible front page news.

(2) Professor Alain Roussy explores some of the many stirred issues in the now long-running controversy involving Canadian Justice Lori Douglas (whose lawyer husband posted nude pictures of her online and sent copies of the pictures to a client who in turn sued and eventually filed a judicial conduct complaint). Prof. Roussy’s essay is forthcoming in the great international journal, Legal Ethics:

The Douglas Inquiry, involving allegations against Manitoba’s Associate Chief Justice Lori Douglas, is the Canadian judicial ethics story that keeps on giving. The allegations all stem from the fact that ACJ Douglas’ husband posted nude photos of her on the internet back in 2002-2003, before her appointment to the bench. There have been a number of recent developments in this matter and many interesting legal questions are at play. These include: the role of the Attorney General of Canada in applications for judicial review of decisions made by the Inquiry Committee of the Canadian Judicial Council, the jurisdiction of the Federal Court to hear such applications, the existence (or not) of a solicitor-client relationship between Independent Counsel (counsel specifically hired to impartially present the case to the Inquiry Committee) and the Canadian Judicial Council, and the appropriate roles of Independent Counsel and Committee Counsel. Clearly, the Douglas inquiry has shone the light on the inadequate complaint-resolution processes of the Canadian Judicial Council.

(4) Two Prague professors (at Charles University) just posted this interesting study on judicial discipline in the Czech Republic:

The article analyses all judicial disciplinary decisions issued by the disciplinary court in the Czech Republic since 2008, when the reform of the disciplinary court took place. The authors, after introducing the Czech disciplinary system, describe the conduct of the judges which was found inappropriate by the court. In the second part of the paper they offer analysis of the cases tried by the disciplinary court in which the court found no substantial breach of the standards of professional judicialethics or which were suspended before a decision was reached. In the last part of the paper, the authors summarise their findings, offer their interpretation and place their findings in a broader Czech context. The article thus offers an overview of the most recent practice of the Czech disciplinary court, which may be used for international comparison with the judicial disciplinary practice in other states.

The Supreme Court has agreed to hear another case on the Code of Judicial Conduct. It has not explicitly done so since Republican Party of Minnesota v. White (and we all know how that one turned out; cf. also the Caperton and Carrigan opinions). Judicial candidate Lanell Williams-Yulee signed a mass-mailing in which she solicited contributions to her campaign. Not surprisingly for those who have read the judicial ethics code in effect in a majority of states, this conduct violated the prohibition against personally soliciting campaign contributions. “A candidate . . . for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds. . . .” Fla. Code of Judicial Conduct Canon 7C; see also 2007 Model Code R. 4.1; 1990 Model Code Canon 5C. As the 2007 Model Code (but not the Florida Code) helpfully defines, moreover, “’Personally solicit’ means a direct request made by a judge or a judicial candidate for financial support or in-kind services, whether made by letter, telephone, or any other means of communication.” The Florida Supreme Court thus publicly reprimanded Williams-Yulee for violating the Canon, notwithstanding her complaint that the Canon violates the First Amendment “in that it limits a judicial candidate’s right to engage in free speech by prohibiting a judicial candidate from directly soliciting campaign contributions.” The circuits have split on the First Amendment issue, and Williams-Yulee sought cert on that basis. (Of note, her petition relies in part on the Ninth Circuit’s recent split decision invalidating the personal solicitation canon as applied to non-judges, but the Ninth Circuit has since agreed to rehear the appeal en banc this December. See Wolfson v. Concannon en banc petition and panel opinion.) In part because Williams-Yulee’s adversary (the Florida Bar) made the controversial decision to urge the Supreme Court to hear Williams-Yulee’s petition, the Supreme Court has agreed to do so.

Of potential interest, the cert petition, in Appendix D, includes a copy of Williams-Yulee’s solicitation letter. In it, Williams-Yulee tells an unknown number of local lawyers, litigants, and others that:

I need to mount an aggressive campaign. I’m inviting the people that know me best to join my campaign and help make a real difference. An early contribution of $25, $50, $100, $250, or $500, made payable to “Lanell Williams-Yulee Campaign for County Judge”, will help raise the initial funds needed to launch the campaign and get our message out to the public. . . . Thank you in advance for your support.

As an editorial comment, let’s hope that at least five justices recognize the significantly coercive and corrupting effects of personal solicitation (both in reality and in appearance and both as to the judge and the contributor), particularly combined with the fact that the judges or prospective judges would be directly soliciting money from the same lawyers and parties who appear or will appear before them.

After 100-plus years, the American Judicature Society sadly will be closing its doors. As the AJS President said in a press release:

A fair and impartial justice system is the foundation of American liberty. The American Judicature Society has fought to improve and preserve the fairness, impartiality, and effectiveness of our justice system for 101 years as a member-based entity. However, in the last several years, the membership model has become more challenging for many nonprofit organizations around the country, including AJS. At the same time, new nonprofit entities with organizational and financial structures more suited to the times have joined AJS in the fight. The American Judicature Society’s Board of Directors decided that rather than operate on a limited scale, and rather than duplicate the excellent work of other similar entities, AJS should find new homes for its core functions. To this end, AJS and the National Center for State Courts (NCSC) have entered into a Memorandum of Understanding that transfers AJS’s Center for Judicial Ethics (the CJE) to NCSC and ensures that the CJE will continue its very important work. AJS is also in the process of finding new homes for Judicature and AJS’s internet accessible resource known as Judicial Selection in the States.

Even after the American Judicature Society closes its doors, its legacy will live on as long as Americans recognize and support a fair and impartial justice system as essential to our freedom.

Many presumably will be familiar with the Second Circuit’s reassignment of the New York “stop and frisk” controversy from Judge Scheindlin to another district court judge. See, e.g., Ligon v. City of New York, 736 F.3d 166, 171 (2d Cir. 2013) (“A district judge has no legal interest in a case or its outcome, and, consequently, suffers no legal injury by reassignment.”). Now, Prof. Kalhan (Drexel) has written a lengthy criticism about the Second Circuit panel’s process, orders, and opinions:

On October 31, 2013 — just days before New York City’s mayoral election — three federal appellate judges, José A. Cabranes, John M. Walker, Jr., and Barrington D. Parker, Jr., hastily issued an unusual order staying two major decisions by U.S. District Judge Shira A. Scheindlin, which held that the New York City Police Department’s “stop and frisk” practices involved unconstitutional racial profiling. Acting sua sponte and providing no reasoned explanation, the three judges dismissed Judge Scheindlin from presiding over the stop and frisk cases altogether, summarily concluding that she had “compromised” the “appearance of [im]partiality” surrounding the litigation. Two weeks later, after their order had been widely criticized, the three judges abruptly issued a new opinion casting aside the ostensible basis for their earlier decree in favor of other legal grounds. To support their decision, the three judges relied entirely upon extrajudicial information that — by their own acknowledgment — they “read [in] the newspapers.”

In this Article, I closely examine this episode, which highlights a growing fluidity between adjudication and public discourse. With enormous amounts of news, opinion, and other information instantly available online, it has become trivially easy for judges to independently research matters outside the formal judicial record that they deem relevant to the cases before them. As a result, judges increasingly appear to render decisions based on extrajudicial sources, but without meaningful constraints or norms to guide and limit the practice. The panel’s actions illustrate the hazards in this apparent trend. Throughout the stop and frisk litigation, New York City officials relentlessly attacked Judge Scheindlin in the media for her alleged “bias” against law enforcement, but declined to actually seek her recusal. By validating and giving effect to that campaign — based entirely on what they had read in the newspapers — Judges Cabranes, Walker, and Parker openly permitted the norms of contemporary political discourse embodied in those news stories to displace the norms of reasoned judicial decision making, and unnecessarily inserted themselves into the mayoral election campaign.

Whatever the precise reasons for the conduct of Judges Cabranes, Walker, and Parker, both due process and the quality of their adjudication suffered as a result. And ironically, the three judges also thereby failed to satisfy the very standards to which they sought to hold Judge Scheindlin. The procedurally irregular and substantively deficient nature of their adjudication gave more than ample cause for reasonable observers to question the three judges’ own impartiality and propriety, and undermined the decisional independence that trial judges must enjoy to render fair and impartial decisions that are seen as legitimate across the full spectrum of the public’s diverse litigants and communities.

In a time when money is flowing into judicial elections, the ABA has finally passed a resolution designed generally to address the often problematic results and appearances when lawyers and litigants contribute or otherwise expend significant sums of money to elect or retain a judge. The ABA’s Judicial Division had defeated an earlier, more detailed resolution to address when judges should recuse themselves because the lawyers or litigants appearing before them had made significant campaign contributions or independent expenditures for (or against) those judges. Although diluted, the new ABA Resolution 105C is still a step in the right direction because it addresses four key areas of improvement and urges training to address these often difficult disqualification questions:

RESOLVED, That the American Bar Association urges that states and territories adopt judicial disqualification and recusal procedures which: (1) take into account the fact that certain campaign expenditures and contributions, including independent expenditures, made during judicial elections raise concerns about possible effects on judicial impartiality and independence; (2) are transparent; (3) provide for the timely resolution of disqualification and recusal motions; and (4) include a mechanism for the timely review of denials to disqualify or recuse that is independent of the subject judge; and

RESOLVED FURTHER, That the American Bar Association urges all states and territories to provide guidance and training to judges in deciding disqualification/recusal motions.

The latest issue of The Professional Lawyer was just published, and Prof. Ben Cooper (Mississippi) included a good article on how to deal with the divisive issue of whether judges should be permitted to “friend” lawyers and litigants on Facebook, and if so, what disclosure obligations result. Prof. Cooper’s article can be found here, and the abstract follows:

A wave of recent judicial ethics opinions from the states and the ABA offers direction on navigating the ethical minefield of social media use by judges. The author, an ethics professor, surveys opinions on point and argues that although they provide helpful guidance on a number of issues, they fall short in terms of providing clarity on the critical issue of whether judges may “friend” lawyers who may appear before them, and if so the extent of any disclosure obligation to other parties in litigation involving the social media “friend.”

Profs. Philip Bryden (Alberta) and Jula Hughes (New Brunswick) just revised their lengthy work on judicial recusal standards in Canada. Click here to download the full paper, and here is a partial abstract:

Beginning with a review of a number of leading Canadian and other common law decisions on judicial disqualification, we explore the implications of the divergent strands of thinking that emerge in the jurisprudence to improve our understanding of the Canadian jurisprudence and then move to a discussion of the substantive rules governing judicial disqualification in six categories of cases. We argue that the conceptual tools we use in addressing issues of judicial impartiality tend to fail us precisely in the analytically marginal cases where, based on the jurisprudence or policy, plausible arguments could be advanced for suggesting both that a judge should or should not be disqualified. This uncertainty puts pressure on judges to recuse themselves in marginal situations in which it would be better from the standpoint of the efficient administration of justice for them to sit.

First, for federal judges, the Committee on Codes of Conduct issued Opinion 112 in March. It generally condemns various behavior on social media (e.g., “maintaining a blog that expresses opinions on topics that are both politically sensitive and currently active, and which could potentially come before the [judge’s or judicial] employee’s own court,” “any use of a judge’s or judicial employee’s court email address to engage in social media or professional social networking,” and “‘liking’ or becoming a ‘fan’ of a political candidate or movement”). The full Opinion 112 can be found here. The link is also helpful because it contains the full text of the Committee’s opinions from the past five years.

Second, the Arizona Judicial Ethics Advisory Committee issued Opinion 14-01 in May. It examines in a fair amount of detail the ethical issues arising from LinkedIn and Facebook (among other platforms) for both judges and judicial employees. For example, it concludes that both judges and judicial employees generally should not recommend (or arguably endorse) attorneys on LinkedIn who appear in the court. Turning to Facebook, it concludes that being a Facebook friend with a lawyer does not necessitate recusal in every case involving that lawyer, but the relationship might need to be disclosed to the parties, and if the judge is actually biased or if the judge’s impartiality might reasonably be questioned, simply “defriending” the lawyer will not fix the disqualification problem. Similar to the federal opinion above, this state opinion also concludes that “a judge may not be a ‘friend’ of or ‘like’ [a legislator’s] or another judge’s reelection campaign Facebook page because Rule 4.1(A)(3) prohibits judges from endorsing another candidate for any public office.”

UPDATE: The Arizona opinion was slightly revised shortly after this post. The revised opinion can be found here. Many of the revisions are minor; probably the largest addition follows:

As to friending or liking the websites of political candidates, judicial employees other than a judge’s personal staff, courtroom clerks, and court managers may do so subject to the restrictions set forth in Rule 4.1. A judicial employee should not identify him or herself as a judicial employee in so doing and should avoid conduct that may give the impression the employee’s political activities are on behalf of the judiciary. Members of judges’ personal staff, courtroom clerks, and court managers are subject to the same political limitations as judges contained in Canon 4 of the Code of Judicial Conduct, except as provided in Rule 4.3 (Elective Judicial Department Office).

By the way, for an interesting Facebook-based disqualification case, see Chace v. Loisel, 2014 WL 258620 (Fl. Dist. Ct. App. Jan. 24, 2014). There, the judge had tried to friend a litigant on Facebook, and the litigant essentially rejected the request based on advice from the litigant’s attorney. The litigant claimed that the judge thereafter issued retaliatory rulings against her because she had rejected the judge’s friend request, and the litigant moved for disqualification. The appeals court concluded that these facts were facially sufficient to warrant disqualification.